Anti Flag-Burning Amendment

It seems that the House of Representatives just passed a bill to ban "desecration of the American flag."

Let me start by saying the the usual Official SobekPundit Rule of Federal Power has no application in this case. If there is a Constitutional amendment, the question of "should the federal government be doing this" becomes moot. The extreme difficulty of amending the Constitution means the issue of division of state and federal power becomes highly attenuated, because state power will necessarily come into play during the ratification process.

The most important Supreme Court case on the topic is Texas v. Johnson, 491 U.S. 397 (1989). I'm getting my summary and other key materials from Shiffrin and Choper, The First Amendment: Cases, Comments, Questions (WestGroup, 2001). In Johnson, the defendant was convicted of a Texas statute banning the desecration of the American flag, after he burned a flag to protest the Republican National Convention in Dallas. It was a pretty standard scenario - a bunch of liberal freaks, who would have an absolute hissy fit if you dared question their patriotism, basically rioted, burned a flag, and chanted "America, the red, white and blue, we spit on you." Apparently, being a liberal doesn't automatically give you a sense of cadence.

The statute under which he was convicted prohibted the intentional or knowing desecration of a public monument, a place of worship or burial, or a state or national flag. The statute defined the word "desecrate" as meaning "deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action."

The Supreme Court, per Justice Brennan, said that Texas wasn't asserting any interest other than in suppressing expression. The law was struck down as a content-based restriction. In a paragraph that highlights a point I just made just the other day about government power, the court said, "National unity as an end which government officials may foster by persuasion and example is not in question. The problem is whether under our Constitution compulsion as here employed is a permissible means for its achievement."

Four justices dissented. Rehnquist wanted to make an exception to normal First Amendment rules just for the American flag: "For more than 200 years, the American flag has occupied a unique position as a symbol of our Nation, a uniqueness that justifies a governmental prohibition."

Professor Shiffrin commented on the case: "The flag-burning prohibition is a naked attempt to smother dissent. If we must have a 'central meaning' of the first amendment, we should recognize that the dissenters - those who attack existing customs, habits, traditions and authorities - stand at the center of the first amendment and not its periphery. ... The first amendment has special regard for those who swim against the current, for those who would shake us to our foundations, for those who reject prevailing authority." Shiffrin, "The First Amendment and the Meaning of America," in Identities, Politics, and Rights 318 (Sarat & Kearns, eds. 1995).

After the Johnson decision, Congress passed the Flag Protection Act of 1989 to ban flag burning, drafted in such a way as to get around the Supreme Court's language in Johnson. The statute was challenged in U.S. v. Eichman, 496 U.S. 310 (1990). Again, the Supreme Court shot down the law, because although there was no explicit content-based restriction, it was clear that the government's interest was in supressing free expression. The same four who dissented in Johnson, Stevens, White, Rehnquist and O'Connor, dissented again.

The reaction in Congress to the Johnson decision, prior to adopting the Flag Protection Act, was interesting. The Senate passed a resolution by a margin of 97-3 expressing disappointment with the Johnson case, and the House passed a similar measure by a margin of 411-5. President Bush Sr. proposed a constitutional amendment to ban flag burning. The Flag Protection Act was, in part, an attempt by supporters of Johnson to block the amendment, because it's easier to persuade a legislator to make a law than to change the Constitution. The law passed, and by the time it was struck down in Eichman, support for an amendment was gone.

I wasn't aware that anyone was even trying to get an amendment passed until I saw Drudge's link today. According to the story, the proposed amendment has passed the House every time it has come to a vote, but it always dies in the Senate, and a quick look at the numbers suggests it will come closer than every before, but still not make it through the Senate.

The full text of the proposed amendment reads: "The Congress shall have power to prohibit the physical desecration of the flag of the United States."

I have argued in the past that one method of reigning in runaway judicial power would be a declaratory authority, an override mechanism requiring a two-thirds majority in both houses of Congress and the President's signature, to declare constitutional any law which the Supreme Court deems unconstitutional. My reasoning is this: where the united voices of two branches of a tripartite government declare that a law is in harmony with the Constitution, then the unilateral power of the third branch to override the other two branches suggests a serious imbalance.

The benefit of such a mechanism is that one Supreme Court decision no longer could screw up generations of jurisprudence just because a few justices were having a bad day. When the Supreme Court speaks, their decision is a de facto constitutionalization of whatever they want to make up. An override mechanism destroys the de facto ability of the Supreme Court to re-write the Constitution according to their personal predilections, but without the lasting effects of Supreme Court precedent. After all, just because Congress says that a given law is constitutional doesn't mean Congress can't go repeal it the very next session. Bad decisions, then, will always be more open to review, to correction, to deletion than they are now.

It has been argued in response that my proposed mechanism is functionally useless. After all, I acknowledge that two Congressional super-majorities and a President's signature are extremely hard to come by. But I bring all of this up specifically because I think the flag-burning case best illustrates the utility of my proposed judicial override mechanism. As noted, Congress is extremely hesitant to amend the Constitution. But after Johnson, in a rare display of unity, both the House and the Senate overwhelmingly rejected the Supreme Court's decision. In that case, if there had been a judicial override mechanism, it could easily have been invoked, and without the permanent alteration of the Constitution. Again, Congress could repeal or alter the law at any time - just because a bill is constitutional doesn't mean it has to be written. The only effect of the override is that when the Supreme Court says "this violates the Constitution," to co-equal branches of government could unite to say "no it doesn't."

Perhaps the flag-burning case is actually a bad illustration. In fact, I don't support such a bill, or amendment. The fact is, I think people who hate America should be given free reign to express that hatred (in a non-violent fashion) all day long, chanting whatever slogans they choose about how that government which offers them freedom of speech is so tyrannical. The best response to the flag burners, I think, is to take their pictures, publish their activities, and print their slogans as a permanent memorial of their hatred of our country. And yet I also think that the sovereign will of the people should trump my own opinions, as well as the private opinions of five out of nine justices. If Americans don't want freedom of speech, let them limit it and deserve what they get. But God protect us from a Court that denies our political freedom for the sake of our own protection.

Update: So far I haven't found any bloggers who actually support the amendment, but I'm still looking. Meanwhile, Teaparty at Les Enfants Terrible sums up my view quite succinctly: "In the short-term, it is an excellent way to determine who in this country really needs an ass-whuppin'. " Precisely.

Update: Pig thinks the amendment is the sort of thing Nazis do. Actually, Nazis burn Jews to death and invade Poland for Lebensraum. Mostly, Pig gets a link because I see so few Las Vegas bloggers.

Update: There are good reasons to oppose the amendment, and then there are bad ones. Rob asks, "Can a ratified amendment to the Constitution be itself unconstitutional, if it contradicts another part of the Constitution?" If the answer to that is "no," then I have no idea why blacks aren't slaves anymore.

Ace is So Wrong

Ace complains that it is "impossible to capture a terrorist using art," in response to news that the National Endowment for the Arts is getting increased federal funding, while Bush's defense request is getting underfunded by seven billion dollars.

Ace, Ace, Ace. Don't get me wrong, here, I like Ace. He's a funny guy, and he makes some good points on a lot of issues. So I don't mean it personally when I say the guy lacks imagination.

Consider the following scenario. The NEA gets a huge wad of cash to give to artists who want to challenge our worldviews. One such artist (I'm certain there would be many volunteers) makes a creation entitled "Piss Koran," essentially a follow-up to Andres Serrano's bold and daring 1989 work, which challenged worldviews. The government also funds the exhibition of "Piss Koran" in a museum. A bunch of terrorists, who want to have their worldviews challenged, come to the museum. The FBI arrests them all.

And in one masterstroke, the NEA will justify its existence.

Of course, after a while, "Piss Koran" would lose its effectiveness, both because eventually all art becomes less challenging to worldviews, and because eventually the terrorists would realize it was a trap. So another bold and daring artist could challenge worldviews by creating "The Holy Prophet," a painting of Muhammad covered in elephant feces, a follow-up to Chris Ofili's bold and daring "The Holy Virgin Mary." And when that one ceases to lure in terrorists who want their worldviews challenged, maybe we could get one of the vast pool of professors who publish papers on why Muhammad was gay to give public lectures, again with a view to capturing terrorists who want to challege their worldviews.

Actually, I think the best suggestion comes from Allan Guyton, commenting on Ace's post:

"Gitmo is not a Gulag. Gitmo is not even a POW camp. Gitmo is federally-funded PERFORMANCE art. If the libs have a problem with that, they can take it up with the ACLU."

Power, From the Barrel of a Gun and Otherwise

Chairman Mao famously said that "all power comes from the barrel of a gun." I think in general that we agree with Chairman Mao at our peril. But sometimes it seems people do so without realizing it.

Here's my gripe. Here in Vegas there is only one real talk radio station. The morning hosts are Alan Stock and Heidi Harris. They have a recurring theme that gets under my skin, so I'm going to discuss it, as well as make a larger point.

One morning when they deigned to actually discuss the political, the topic was a local candidate for judge (yeah, we elect judges here, apparently because we're retarded). The candidate in question was making news because it was revealed that she had worked her way through law school as a stripper. Alan and Heidi were decidedly for the proposition that because nude dancing is a legal profession, her, uh, eye-raising resume' shouldn't count against her at all. This conclusion is part of a broader attitude that basically anything goes in Vegas, as long as it's legal it must be fine, and if you don't like it, Salt Lake City isn't too far away.

Their approach is a little tiring, in large part because it's so repetitive, but also because it subscribes a little too closely to Chairman Mao's dictum for a couple of putative libertarians. The logic is, government should not be used to enforce morality. Nude dancing is a morality issue, and therefore the government should stay out of it. (So far, the argument is not fundamentally unsound). Then they take the next step and argue that because government should stay out of it, criticisms based on morality must be defective. Therefore, if one of their callers says this judge is not qualified because she was a nude dancer, that caller must be a freak, religious nut, extremist, whatever.

Here's where I disagree: even though I must take as a baseline approach that government doesn't regulate morality here in Las Vegas, it does not necessarily follow that the regulatory power is or should be the only power. That is, just because government cannot (and let's just assume it cannot) forbid something using the police power (i.e. that which comes from the barrel of a gun), it does not follow that government has and should have no other kind of power.

In other words, even if everyone agrees that government should not criminalize nude dancing (and here, I'm not arguing that point one way or the other, only using it as an example), one might wonder whether government has other avenues of influence, other than the police power, to effect policy. Government may, in fact, have a persuasive power, as well as a police power.

For an excellent example of why that might be a good idea, consider this rather old news from Uganda. (Also here for a lamentation). Uganda is unique among African nations, it seems, in that it has successfully lowered its AIDS infection rate. How? By using the ABC method (abstinence, be faithful, condoms if the first two options fail). Most notably for the purposes of this post, the program is not a criminal one, whereby philanderers are jailed for unprotected sex. Instead, the government is using other forms of power to influence, rather than coerce, the population to comply with governmental policy goals. And remember, Uganda's program has actually worked. (For a different view on the Uganda situation, this writer argues that it's the "C" in ABC that's getting all the results. That strikes me as a seriously inconsistent argument, given that all the other African nations that promote condom useage have rising, rather than falling, AIDS cases).

In other words, here is an example of government using non-police power, on a highly morality-driven topic, and getting results.

There's more to be said about persuasive power. Consider that critics of the Catholic Church like to complain that the Church is partly to blame for the African AIDS crisis, because the popes won't budge on their no-condom stance. But note that these critics are tacitly acknowledging the importance of the Catholic Church's non-police power - no one will argue that the Pope's power comes from the barrel of a gun, and yet everyone seems to agree that he does, in fact, have power.

In another important example, consider the Missouri statute that came under attack in Webster v. Reproductive Health Serv., 452 U.S. 450 (1989). Missouri passed a law regulating abortions, for example by banning the use of public facilities for abortion procedures. The plaintiffs also attacked the preamble to the statute, which said in part, "the life of each human being begins at conception." This section was upheld because it merely expressed a value statement in the abstract. Two important points can be drawn from this. First, the Supreme Court upheld the power of a state to make a value judgment (albeit one without any legal effect). Second, the fact that the preamble was attacked suggests that the plaintiffs recognized that there was power in the preamble, even if the preamble had no specific enforceability. They realized as a tactical matter that the government was trying to use something other than police power, and they tried to stop it.

Now to return to Mr. Stock and Ms. Harris. I've been assuming so far that it is government, rather than private individuals, who would be making some sort of decision concerning this former stripper/would-be judge. As a practical matter, I can't see that happening - no one has ever suggesting anything like government intervention to bar her from running. Rather, we're talking about private conduct, private individuals, deciding whether the woman's past will affect their voting decisions. In this light, it is completely irrelevant that nude dancing is a legal profession. No one can argue that citizens can't base their voting purely on moral grounds. I don't think Stock and Harris expressly stated otherwise. But the tone of their discussion suggested it.

In other words, their view looks something like this: government cannot prevent nude dancing, because it is a morality issue, and government shouldn't criminalize morality issues. Because criminalization is the only power government has, the government has no legitimate power over this issue. Because the government has no power, private citizens should not take morality issues into account when voting on a particular candidate for judge. When stated thus, it's clear that the logic is hopelessly flawed - which of course explains why Stock and Harris never stated it thus. They simply didn't think it through, it would seem, and that led to their absurd approach on the radio a while back.

For that matter, when Stock and Harris dismiss callers who complain about seediness in Las Vegas, saying "hey, you can always move to Salt Lake City," they are totally out of line. It may be true that government cannot or should not criminalize whatever religious people deem immoral, but that doesn't change the rights of those religious people to attempt to influence the government to adopt their policy views, either by voting or through other political processes. Yes, they can move to Salt Lake City (or some other city, if they are not Latter-day Saints but nevertheless disapprove of whatever Stock and Harris are railing against). But they also have every right to stay here in Las Vegas and try to change things.

And just to reiterate, I emphatically reject Mao's dictum that "all power comes from the barrel of a gun." History teaches otherwise. And I don't take psychotic mass-murderers at their word.

That's an Unusual Job Interview

I thought it was wierd when my boss pulled out a big knife while interviewing me, but I guess this story beats mine.

Speaking of wierd interview stories: before law school I worked as a teacher for a year. The woman who interviewed me told me, after I had been there for a few months, that the other candidate had asked her during the interview, "what is your policy on teachers touching students?"

I never asked whether the other candidate was an androgynous pop star.

Legal Advice for the Day

Plaintiffs can't remove. No matter how much my boss wishes it were otherwise.

A Quick Note on Creationism

While I generally try to avoid substantive religious discussion on my blog, I want to make one quick point about this Jim Pinkerton column. He argues that "it's a fallacy to argue that just because one person -- or even all the people of an era -- can't figure out how something works, therefore such mysterious workings are beyond any human comprehension, ever. ...And so it is with science: eventually, some scientist will figure out how the 'trick' of the bacteria's flagellum is done."

I noticed the identical argument when I read the incredibly boring-yet-important-because-seminal Origin of Species by Charles Darwin, best known for having a prestigious award named after him. The argument is that hey, just because scientists don't know all the answers now doesn't mean they won't eventually figure them out. Just as Pinkerton asserts - with all the unshakeable faith of any religious person I've ever met - that one day a given biological mystery will be understood by science, so did Darwin assert with unshakeable faith that the limited geological record of his day would one day become complete.

Well, with that kind of faith, Pinkerton and Darwin don't need to waste time in a church, do they?

Yes, it is a fallacy to argue that just because something isn't known now, it can never be known. But it is also a fallacy to argue that just because we've figured things out in the past, all things must eventually be figured out. Both are non sequitur arguments. And both require a tremendous amount of faith.

Democrats Are Sexy

The Man at GOP and the City has a photoshop/caption contest up, featuring a girl with a shirt that reads:

"Democrats are sexy... Whoever heard of a nice piece of elephant?"

And I must say, although I disagree with their politics, I think the young lady is right. History has shown that Democrats beat Republicans in sheer sexual magnetism by ...








... okay, now, that's a total cheap shot. Besides, it doesn't prove anything. I mean, just because one Senator from Massachusetts happens to be a little ...








... GAAAAAH! - (Image courtesy of the Llama Butchers) - okay, fine, maybe it's the whole freaking state. But again, it's a logical fallacy to try and take a few examples and extrapolate a conclusion that ...








HOLY CRAP!!! Dude, you gotta warn a guy before ...








What is that thing attacking Sharpton's head?








...
Okay, seriously, this all ignores the point I was trying to make. Just because Democrats have in the past elected some people who look like some sort of medical experiment doesn't mean the typical Democrat isn't ...






Okay, I stand corrected.

I guess now we know why the t-shirt had text but no picture.

The Scientology Interview

John from Wuzzadem thinks he's so cool, just because he got to interview someone from the set of the new Tom Cruise movie War of the Worlds about Scientology. Well, just to out-do him I went and got an interview with Tom Cruise himself. Suck it, John!

Sobek: Thanks for joining me, Tom.






Tom: No problem, Sobek. You know, I've always thought you were way cooler than Osiris.






Sobek: You're making me blush.






Tom: I mean it. You've got that whole "devouring your enemies" thing going on. All Osiris ever did was get killed and chopped into pieces.






Sobek: Well thanks. Anyway, let's get on with the interview. Now you may recall that last August you told Rolling Stone magazine that Scientology is "the s**t, man." Do you still think so?






Tom: Absolutely. I ...






Pope Benedict: Pardon me, but actually Catholicism is the s**t.






Sobek: Your holiness! I didn't expect ...






Tom: No way, man. You don't even know!






Pope Benedict: Look, there are a lot more Catholics in the world than there are scientologists, and we all agree that Catholicism is the s**t.






Ayatollah: Blasphemous infidels! Islam is the s**t!!!






Sobek: Whoa, where did you come from ...






Tom: You're both wrong! Scientology is the s**t, and that's all there is to it.






Brigham: Pardon me, but verily I say that Mormonism is the manure.






Sobek: Wait a minute, I thought you were dead. And that Ayatollah guy, too...






Ayatollah: Islam! Islam is the s**t! By Allah you will burn for your blasphemy! All true followers of Ali and the hidden Imam know that Islam is the s**t!





Pope Benedict: Don't make me come over there ...






Tom: I'd like to see you try it, old man!







Dalai Lama: Children, be at peace.






Sobek: Whoa, it's getting crowded in here.






Dalai Lama: There is no need to argue about this. Especially when everyone knows that Buddhism is the s**t.






Brigham: Mormonism is the manure!






Tom: Scientology is the s**t!






Seneb Khufru: Ancient Egyptian paganism is the s**t!






Sobek: Okay, I think that's all the time I have. Thanks, guys.

Formerly-Endangered Species

CNN reports that the grizzly bears at Yellowstone might be taken off the endangered species list.

Okay, personally I don't find the story very interesting. I'm not a bear. I don't plan on being a bear. And if I ever meet a bear, I hope it's either tame or dead. That's not to say I don't care about extinction -- it's just that if people who care about bears say the grizzlies aren't endangered anymore, then okay. Fine. Do whatever you bear-liking people have to do. And if they're still endangered, fine, leave 'em on the list. Just so long as they stay out of my garbage cans.

No, the really interesting this is the poll CNN is conducting right now. (As far as I know, there's no way to link to the poll). The question is: "Should grizzly bears around Yellowstone National Park be taken off the Endangered Species list?" And the poll results as of 8:00 p.m. PST is 31% yes (3021 votes) and 69% no (6701 votes).

In other words, the vast majority of people who care about the issue at all (which doesn't seem like very many -- apparently I'm not alone) don't care about the actual status of the bear population. They seem to want the bears on the endangered species list whether or not they are actually endangered.

Now what does that tell you about environmentalists?

Another Possibility Update: My first theory is that environmentalists ignore facts when those facts are inconvenient. I suppose another possibility is that 6701 people really, really hate people from Wyoming, and want to use burgeoning bear populations to kill off the people. Which, if you've ever driven through Wyoming, is kinda understandable.

A Crash Course in the Interstate Commerce Clause (Updated)

(Updated)

As I asserted earlier, the Interstate Commerce Clause basically means Congress can do whatever it wants to do. Here's a summary, culled from Constitutional Law by Stone, Seidman, Sunstein and Tushnet (4th ed.) of what, according to the Supreme Court, counts as "commerce ... among the several states."

Gibbons v. Ogden (1824) - A man wants to operate a ferryboat between New York and New Jersey, in violation of a New York statute limiting ferryboat operation to two certain people. This is interstate commerce.

U.S. v. E. C. Knight Co. (1895) - One sugar manufacturer acquired four other manufacturers, and the U.S. sued for antitrust violations. This is not interstate commerce.

Champion v. Ames (1903) - Congress criminalizes the interstate transportation of foreign lottery tickets. This is interstate commerce.

Swift & Co. v. U.S. (1905) - Congress regulates meat dealers, even those who buy and sell locally. This is interstate commerce.

Southern Ry. v. United States (1911) - Congress regulates railway cars with defective couplers, even if the railway cars operate only within one state. This is interstate commerce.

Houston, East & West Ry. v. U.S. (1914) - A federal commission regulated prices charged by a railway running between Texas and Louisiana. This is interstate commerce.

Hammer v. Dagenhart (1918) - The Child Labor Act forbids the sale in interstate commerce of goods produced in factories that employ kids under 14, or kids between 14 and 16 for more than eight hours per day. The factory employment is interstate commerce (5-4 split).

Stafford v. Wallace (1922) - Congress passes law controlling operation of cattleyards, where cows will eventually be sold across state lines. This is interstate commerce.

Coronado Coal Co. v. United Mine Workers (1925) - U.S. sues mine operators for antitrust violations. Operating a mine is interstate commerce.

Ry. Retirement Bd. v. Alton Ry. Co. (1935) - Congress tries to establish compulsory retirement and pension plans for railroad workers. Railroad safety may be interstate commerce, but retirement and pension are not (5-4 split).

A.L.A. Schechter Poultry Corp. v. U.S. (1935) - Virtually all poultry sold in New York came from other states. President Roosevelt approves a Live Poultry Code establishing forty-hour week, imposing minimum wage, forbidding child labor and allowing collective bargaining. This is not interstate commerce.

Carter v. Carter Coal Co. (1936) - Congress regulates collective bargaining issues in the coal industry. This is not interstate commerce.

U.S. v. Darby (1941) - Under the Fair Labor Standards Act, Congress seeks to prevent the sale in interstate commerce of manufactured goods produced by employers who don't comply with minimum wage laws. This is interstate commerce.

Wickard v. Filburn (1942) - The Agricultural Adjustment Act sets a quota on wheat production. Filburn grows wheat both to sell across state lines and to feed his cattle. Filburn argues that the wheat which doesn't cross state lines is beyond the reach of Congress, so it doesn't violate the quota. The wheat he feeds his cows is interstate commerce.

Heart of Atlanta Motel v. U.S. (1964) - The Civil Rights Act prohibits public accommodations (e.g. hotels and restaurants) from discrimination on the grounds of race. The motel is engaged in interstate commerce.

Katzenbach v. McClung (1964) - A companion case to Heart of Atlanta, where a restaurant owner who discriminated against blacks challenged the statute. Operating a restaurant near a highway is interstate commerce.

Maryland v. Wirtz (1968) - Congress amended the Fair Labor Standards Act and dropped the "in interstate commerce" part. This is still interstate commerce.

Perez v. U.S. (1971) - Congress passes a law against purely local loan sharking. This is interstate commerce. The court said that although the Defendant here was purely local, loan sharking in general can be interstate, and Defendant is part of the class defined as "loan sharks."

U.S. v. Bass (1971) - Congress tries to make it illegal for felons to receive or possess a firearm that has been transported in interstate commerce. The Court doesn't say this isn't interstate commerce, but does strike down the statute as being too vague.

Garcia v. San Antonio Metro Transit Auth. (1985) - Congress passes minimum wage and maximum hour limits for employees of state and local employees. This is interstate commerce.

U.S. v. Lopez (1995) - Congress passes the Gun-Free School Zones Act, making it a crime to possess a gun in a school zone. This is not interstate commerce.

U.S. v. Morrison (2000) - The Violence Against Women Act provides a civil remedy for victims of crime motivated by gender. Defendant raped a girl on a college campus. This was not interstate commerce.

***

Incidentally, Professor Cross argued in 1999, and I tend to agree, that "federalism will be selectively invoked by courts only when ideologically convenient, so that it has no authentic restraining power of its own." 74 N.Y.U.L.Rev. 1304. I think this principle is well-illustrated in Scalia's vote in Raich. Scalia is sometimes a champion of state power, but not always, it would seem.

***

Supernatural Rabbit Scribe stated his concern about Wickard v. Filburn. I remember in law school being absolutely stunned and dismayed by that decision. If the guy plants wheat on his own property, grows it, harvests it, then gives it to his cows which are also on his property, I could think of no way to justify calling that interstate commerce.

I've since modified my view. Although Filburn wasn't selling his extra wheat, he also wasn't buying anyone else's wheat. His activities, while local, were sufficient to substantially affect interstate commerce, and much more so if other purely local farmers got the same idea. There is simply no question that local production and consumption decreases inter-state shipment and sales of goods, because demand drops.

That's not to say the Congressional scheme was a good idea - on the contrary, imposing quotas on goods is a terrible idea in so many ways. But note carefully that my disappointment with Congress would not, under any circumstances, mean I would have supported the Court if the Court had said, "you know, Congress made a really bad judgment call. We should be more free-market oriented." The issue, again, is not what Congress should do, but what they can do, and I don't want the Court engaging in social or economic engineering even when I disapprove of Congress' actions.

Okay, Now This is Just Getting Silly

Phone Home or Die

Good News and Bad

My computer got completely bombarded with spyware and pop-ups after I reinstalled everything, and I couldn't get into blogger for a while. Obviously that has changed - after many hours I've finally gotten the computer up and running. Then I spent an inordinate amount of time making a sub-par photoshop. Then I realized I haven't reinstalled the software I use to post images on the blog. And it's too late at night for me to do it now. That means you all have to wait.

The even worse news is that now that everyone's on notice that I have a photoshop forthcoming, when I finally get it posted it will be a total let-down. But hey, what are you gonna do about it?

Also forthcoming, as promised, is an update on my post about medical merijuana and the interstate commerce clause.

For the Benefit of Supernatural Rabbit Scribe

Okay, I'll admit it. I'm just not very worried about the result in the recent Supreme Court decision on medicinal marijuana. The case is Gonzales v. Raich, 2005 WL 1321358 (U.S. 2005), for those of you with Westlaw or LexisNexis or something.

Let's start with first principles. The main issue in this case is not marijauna use, but federal power (although it's possible that Scalia signed the majority opinion just because of the marijuana aspect - I honestly haven't read anything other than the cnn.com summary). And the official SobekPundit rule of federal power is this: leave it up to the states unless there is a very important reason not to. Prominent examples include military, foreign policy, and international trade. In every case, the question is, should the federal government be involved in this?

Regardless of the answer, I need to point out for Scribe's benefit that the official SobekPundit rule is not very influential on the Supreme Court. The Interstate Commerce Clause, if I recall correctly, is governed by the "substantially affects" test. And yes, Scribe is right to point out that if the only test is "no more than an instant from the interstate market," there really isn't much (if anything) that doesn't qualify. But Scalia's articulation, however horrifying, is functionally no different from what we've had for the past 70 years or so. "Substantially affects" covers almost everything. About the only thing I can think of, off the top of my head, that doesn't substantially affect commerce, is a high school student carrying a gun at a high school in the middle of Texas. See United States v. Lopez, 514 U.S. 549 (1995). And even then, four out of five thought Lopez was engaged in interstate commerce when he brought a gun to school.

So in other words, while I sympathize with Scribe's shock at the broad liberties taken by Congress and the Court, it can hardly be said that Raich represents a radical expansion of federal power or some new encroachment by the government - it's the same old encroachment we've been living with.

You may be interested to know who voted how in Lopez and Raich, for comparison purposes, because it's the same set of nine on the bench.

Justices who think carrying a gun to school is interstate commerce:
Souter
Stevens
Ginsburg
Breyer

Justices who don't:
Rehnquist (wrote the majority opinion)
Scalia
Thomas
O'Connor
Kennedy

Justices who think growing marijuana for personal use without leaving the state is interstate commerce:
Stevens (wrote the majority opinion)
Scalia
Souter
Ginsburg
Breyer
Kennedy

Justices who don't:
Rehnquist
O'Connor
Thomas

Con Law is wacky that way.

Okay, with all that out of the way, I'll get to the other question about the case, the one that the case isn't about, but which it's really about. Should Congress be able to use the federal police power to prevent the personal production and use of marijuana for medicinal purposes?

Actually, let me drop that last clause, the part about medicinal purposes, because I honestly think it clouds the issue. By injecting emotional stories of personal suffering into the debate, we're really shifting the discussion from "Does Congress have the power to..." to "Should Congress..." And clearly they are separate questions, so let me stick with the first one, because we're dealing with a Supreme Court opinion, and they are only supposed to (ha ha!) review the constitutionality of the laws, not the wisdom of the laws.

So, should Congress be able to use the federal police power to prevent the personal production and use of marijuana? No, probably not. The Constitution says, "The Congress shall have Power ... to regulate Commerce with Foreign Nations, and among the several States..." (Art. 1, sec. 8, para. 3). The goals served by this clause are obvious to me in light of my European Union courses. If individual states can set up protectionist tarrifs and barriers to protect local business, the economy of the whole is hurt. It's easier to dominate a market, stifle competition, limit growth, and discourage innovation when you can use a combination of monopoly and government power to be the 900-pound gorilla. If a federal power can prevent interstate balkanization, the economy of the whole is more likely to flourish.

But of course with locally produced and consumed marijuana, that goal is quite moot. You can't move weed from one state to another anyway, so there's no competition or economy concern.

And as far as federal concern for the prevention of the international drug trade, which the federal government has clear authority to address, that concern is in no way addressed by criminalizing intrastate production and consumption (indeed, it may be an ironic and beneficial side-effect if intra-state growth lowers street prices to the point where international producers can no longer sell their wares on the streets of California).

As a personal matter, I doubt I would have voted for a state law to legalize medicinal marijuana. But I also would accept the results of the vote regardless of my personal views, and I don't favor using federal power to overturn duly enacted state laws. If the citizens of California (or any other state) want to use the ballot box to their own detriment, they have that right.

Conclusion
Under existing federal jurisprudence, there's simply nothing shocking or noteworthy about Gonzales v. Raich. But that case doesn't pass the SobekPundit test.

Gotta Catch 'Em All!

Here's a nice sight gag for my many readers who are afficionados of both 1980s horror movies and crappy Japanimation aimed at spastic toddlers.

Topic

Is there anything fluffier than a cloud?

You guys talk amongst yourselves. I have to study for the bar exam.

The Politics of Rock N' Roll

Hans has it absolutely right. The only thing I would add to his commentary on the ramifications of Nine Inch Nails and geopolitics is this: Mr. President, you've pissed of a man who has been fellated in public by Marylin Manson. You must be doing something right.

On another note, Wish was a great song, back in the day. The new single, Hand that Feeds, starts out sounding like it's going to rock and ... well, then it doesn't do anything. For several minutes it doesn't do anything. And then the song is over.

In other rock n' politics news, I heard on the radio that System of a Down and Audioslave recently did a free concert/anti-war rally in L.A. and a riot broke out. As Audioslave guitarist Tom Morello (formerly of Rage Against the Machine) insisted in playing one final song while fans tried to kill each other, I wonder if he reflected on the irony of that his music was inspiring such violence at a rally for peace.

I suspect he reflected on no such thing.

Update: Another Tom Morello pic that is worth a thousand words. I reiterate: Mr. President, you're doing something right.

Update: For more on how Tom Morello is a giant douchebag, see here.

Entering Las Vegas

Man, is the name "Gentleman's Club" misleading or what?

Update: I mean, you go in there in a tuxedo and people totally get the wrong idea.